IN RE: Taylor M.

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Court of Appeal, Second District, California.

IN RE: Taylor M., a Person Coming Under the Juvenile Court Law.2d Juv. THE PEOPLE, Plaintiff and Respondent, v. TAYLOR M., Defendant and Appellant.

No. B215562

    Decided: February 18, 2010

In 2006, Taylor M. admitted the allegations of a Welfare and Institutions Code section 602 1 petition that he committed arson of the property of another, as well as vandalism causing damage in excess of $400.  (Pen.Code, §§ 451, subd. (d);  594, subd. (b)(1).)   In 2006, the juvenile court placed appellant in a deferred entry of judgment (DEJ) program.   He now appeals from the court's subsequent order revoking his DEJ placement, declaring him to be a ward of the court, and placing him on probation.   Appellant contends that the court abused its discretion and violated his constitutional rights by failing to reduce his monthly restitution to an amount that he could afford, and by revoking his DEJ placement for failing to make restitution payments.   BACKGROUND In November 2004, appellant was 13 years old.   On November 24, he and several other boys threw rocks at construction equipment that belonged to J & S Excavating (J & S).  Another boy threw a firecracker into a bulldozer.   Appellant shut its door, and the bulldozer ignited.   J & S suffered $171,235.55 in damages, including repair costs, rental expenses, and lost labor.   On February 16, 2005, the prosecution filed a section 602 petition alleging that appellant had committed arson and felony vandalism.  (Pen.Code, §§ 451, subd. (d);  594, subd. (b)(1).)   On April 25, 2006, he admitted those allegations, and the court sustained the petition and declared a maximum confinement period of three years, eight months.   Appellant was then 14 years old.   The probation department did not recommend DEJ placement for appellant due to the serious nature of the offenses;  the amount of damage;  appellant's failure to appear for arraignment, which required his arrest on a bench warrant;  and his parents' failure to impose consequences for his behavior.   The prosecutor nevertheless declared appellant to be eligible for, and recommended his placement in, the DEJ program.   The court placed him in the DEJ program on April 25, 2006, pursuant to section 790, under multiple conditions, including his making monthly restitution payments of $100 toward a total restitution of $171,235.55, with a right to credit for amounts paid by other parties.   Section 791, subdivision (a)(3) requires a court to dismiss the charge or charges against a minor who successfully completes a DEJ program within 36 months.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

In a review report filed on January 9, 2008, the probation department recommended the revocation of appellant's DEJ placement.   It stated that he had missed five appointments, “several appointments [had] been rescheduled to accommodate the famil[y's] needs and transportation issues,” and that he had made just two restitution payments since April 2006 (a $25 payment on June 14, 2006 and a $100 payment on October 25, 2007).   The report acknowledged his recent family hardships, including his father's disability, and his mother having suffered from cancer and a stroke.   It indicated that appellant “should have made some sort of effort every month” even if he could not make a full payment.

On January 9, 2008, appellant advised the court that the family's rental expenses exceeded their income and that he had tried to find a job.   The prosecution agreed to his continued placement in the DEJ program.   The court agreed to give appellant another chance and continue his DEJ program placement.   It also warned him to make more effort.   The court denied appellant's request to reduce the amount of his monthly restitution payment.

In a review report filed on January 22, 2009, the probation department recommended revocation of appellant's DEJ placement.   It indicated that he had paid restitution of just $125 during the 32 months that he was in the DEJ program.   A subsequent statement by the prosecutor suggests that by March 2009, appellant had paid a total of $175.   The probation officers provided appellant and his family information about multiple options for complying with restitution obligations.   For example, they advised them how to contact the collection department to set up a payment plan and how to place appellant's case on calendar for a financial evaluation.   They had not used these options.   In addition, appellant failed to provide proof of employment to the probation department.   His school behavior was satisfactory;  his attendance was not.   He was truant 15 times and tardy without an excuse 20 times.   The probation department concluded that section “602 wardship appear[ed] necessary in order to make the victim whole,” and recommended that the court revoke appellant's DEJ placement.

During a March 18, 2009 hearing, Ventura County Probation Officer Monica Gomez testified that she was assigned to appellant's case in December 2007.   Gomez had advised appellant and his father several times that appellant could “place [himself] on calendar and ask for [the] payment to be ․ reduced or ․ put on a freeze, ․ or speak to collections directly and ask for them to work out a payment plan.”   She told him to make monthly payments, and that even if it was just a $5 payment, a $10 payment, or a $1 payment, as long as he made some effort, he would not be violated for failing to make payments.   In 2009, however, she recommended revocation of appellant's DEJ placement because “no effort [was] being made ․ at all.”

Appellant last paid restitution in November 2008;  that payment was $5. Appellant advised Gomez that he was employed at Taco Bell in October 2008, but stopped working there because they did not give him enough hours.   He said that he was “randomly employed” at Pep Boys in November 2008.   In March 2009, he told her he worked as a little league umpire.

Appellant testified regarding his employment at Taco Bell, his inability to get a job at Pep Boys that did not conflict with his school schedule, and his unsuccessful employment applications with eight other businesses.   On March 3, 2009, he started to umpire little league games.   He gave some of his pay to his father for living expenses.   His father had been unemployed since just before appellant's mother suffered her first stroke.   At the time of the hearing, appellant's parents were getting a divorce and his father was homeless.

Appellant's mother testified that he had not advised her of his obligation to pay restitution, and often failed to inform her before the appointment date that he had to meet with the probation officer.   Mother opined that the poor economy and appellant's need to help care for her complicated his ability to find work, but that he probably could have made some small payments of $1 or 50 cents.   Counsel advised the court that mother could not care for her basic needs, including eating.

The court revoked appellant's DEJ placement.   It declared him a ward of the court and placed him on probation, subject to the same conditions it had imposed during his DEJ program placement.

DISCUSSION

Appellant contends that the court abused its discretion and violated his constitutional rights by failing to reduce his monthly restitution to an amount that he could afford to pay, and revoking his DEJ placement for failing to make restitution payments.   We disagree.

Due process precludes a court from revoking a defendant's probation and imprisoning him based solely on his failure to pay a fine or restitution, absent an inquiry into the reasons for the failure to pay.  (Bearden v. Georgia (1983) 461 U.S. 660, 672-673.)   In arguing that the court below violated his constitutional rights by revoking his DEJ program placement, appellant relies in large part on Bearden and other inapposite cases, including Charles S. v. Superior Court (1982) 32 Cal.3d 741, 751.

Unlike appellant, the defendant in Bearden was imprisoned upon his inability to pay a fine, and the sentencing court had failed to inquire into the reasons for the failure to pay.  (Bearden v. Georgia, supra, 461 U.S. at pp. 672-673.)   Here, the court conducted two hearings before it revoked appellant's DEJ placement.   Moreover, upon doing so, it did not imprison him;  it placed him on probation.   It concluded that he was “no longer suitable for the ․ DEJ program” and placed him on probation “as a further effort to attempt to rehabilitate” him.

In Charles S., the juvenile court denied informal probation to a minor who was a proper candidate for informal probation where the minor was unable to pay the amount of restitution fixed by the probation officer.   Our Supreme Court held that minor cannot be denied formal or informal probation solely on ground of his inability to pay restitution.  (Charles S. v. Superior Court, supra, 32 Cal.3d at pp. 744, 751.)   Here, in contrast, the court placed appellant in the DEJ program despite the contrary recommendation of the probation department.   In November 2007, the probation department recommended revocation of his DEJ placement based upon his failure to attend required appointments and make regular payments.   In January 2008, after hearing appellant's explanation for his failure to comply with the conditions of his DEJ placement, the court provided him another opportunity to do so.   It warned him, however, that he must make more than the “terrible effort” that he had made in the prior 18 months.   Appellant again failed to make payments on a regular basis, despite having been told that he would not be violated if he could only make a small payment.   The court neither violated the constitution nor acted unfairly and arbitrarily when it later revoked appellant's DEJ placement and placed him on probation.

Appellant argues that the court abused its discretion in denying his request to reduce the amount of his monthly restitution payment.   We disagree.   Moreover, the denial of that request did not prejudice appellant.   The probation department would not have recommended the revocation of his DEJ placement if he had met with his probation officer on a regular basis and made small payments ($10, $5, or $1).   Appellant failed to establish that he tried to do those things.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

PERREN, J.

Donald D. Coleman, Judge

Superior Court County of Ventura

David A. Andreasen, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Scott A. Taryle Supervising Deputy Attorneys General, for Plaintiff and Respondent.

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